Gazette Staff Writer

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CHILLICOTHE — An outstanding grievance within the Chillicothe Police Department, which is at the heart of a pending unfair labor practice complaint, is set to go before an arbitrator Thursday.

The complaint filed with the State Employment Relations Board alleges the city, via Police Chief Roger Moore, violated labor practices in May during its reaction to a pending grievance relating to sergeants’ wages.

Among the allegations were Moore threatened layoffs and discipline after members of the union met with Mayor Jack Everson without Moore’s knowledge. He also is accused of calling people names and referring to the grievance as “frivolous.”

A public records request for all police department grievances dating to January 2012 revealed the police union only has one pending grievance — the first filed since 2010, said Tammy Bochard, human resources director

'Frivolous' grievance

The union’s initial concerns center around a change to the contract that went into effect Jan. 1, 2012. An “F” step was added to sergeants’ pay and, in early November, Sgt. James Hartley questioned whether he and other sergeants were being paid at the wrong step.

Grievance responses — obtained via a public records request — allege Moore initially agreed, during the informal step of the grievance process, that the union’s position was correct. However, in late November, Moore rejected the position after learning the union would not concede back pay, according to paperwork written by union President Brandon Mather.

In accordance with the contract, the union began moving through the grievance process, garnering an official rejection from Moore and another from Safety Services Director Mike Green in December.

In Green’s detailed response, written after meeting with the union, he reaffirmed Moore’s decision. Although the union thinks the step refers to anyone with 15 years total service with the department, the city’s position is the step actually refers to 15 years as a sergeant.

The contract isn’t specific as to what 15-year anniversary it refers. Green pointed to other contract language relating to sergeants’ seniority being based on time as a sergeant and not overall time with the department.

Moore’s response pointed to pay determination of sergeants being based on a pay increase of 5 percent above what sergeants are making at the time of promotion. As such, a particular step as an officer might not coincide with the same step as a sergeant.

For example, an officer at Step F in the first year of the contract would make $23.42 per hour. When 5 percent is added in, the pay rises to $24.59, which falls between Step C and Step D on the sergeant pay scale.

The union has requested sergeants who have 15 years with the department be moved to Step F and issued back pay to Jan. 1, 2012.

Budget effect

Auditor Luke Feeney had not been asked by the administration how much it would cost the city if an arbitrator sides with the union. However, his office looked at the issue for the Gazette and reported the grievance would affect the pay of three of the six sergeants.

The additional annual cost if the union’s position is affirmed would be about $12,000, not including overtime. Back pay — not including overtime — for 2012 and 2013 would cost the city $24,648.

Although any increase has an effect on spending plans, the cost if the grievance goes through isn’t a budget buster.

“The department’s total salary appropriation for salaries alone in 2013 was $1.7 (million), so that increase would reflect a less than 1 percent increase overall in salaries. However, when money is tight, $12,000 per year can go a long way,” Feeney said.

Union meetings

In the unfair labor practices complaint, the union alleged that, on May 29, Moore threatened layoffs and said he would “not hire any more officers since the union had filed a frivolous grievance.” During that same meeting with union representatives, Moore also allegedly expressed displeasure about allowing employees to “cry/whine about everything and that Officer Mather needed to stand up and tell the employees what is right and wrong.”

The meeting, which the complaint characterized as a tirade, also included concerns about union representatives meeting with the mayor and concluded with an alleged threat of disciplinary actions if the union continued its actions.

According to the contract, meetings between the administration and the union are required at least once every two months to discuss issues including “alleged inequities in the treatment of employees in the bargaining unit.” The contract also indicates that, as a courtesy, the union would notify the police chief in writing of the dates and times of such meetings at least 10 days before the meeting.

Everson said he was contacted by Mather that morning about meeting, but he was unsure what the conversation would be regarding.

“It was pretty off-the-cuff. Anybody in the city who wants to meet with me, I have an open door policy,” he said.

Mather met with Everson, along with another officer and a representative from the Fraternal Order of Police. Moore happened to see them leaving Everson’s office and requested he gather the other union representatives for a meeting with him.

Everson declined to comment on what was discussed at his meeting with Mather, but said there was “no indication at that meeting that there was going to be an unfair labor practice. It was just more of a general conversation.”

The May 29 meeting came six days after allegations the union made in its unfair labor practice complaint. The union said Moore had entered a shift briefing and made comments about the grievance and that it would require layoffs. The complaint also alleged Moore made disparaging comments about a sergeant and told Mather he needed to “(rein) in the union.”

New charge coming

The city has not been served with any new unfair labor practices charges, but a review of recent discipline issued by Moore suggests it’s a possibility.

Since the July 26 filing, a public records request from the Gazette for all police department discipline dating to Jan. 1, 2012, shows Moore has issued three reprimands and one warning.

Of the four actions, two related to incidents from 2012; the other two actions were for incidents in May and July. Disciplinary action in the 10 incidents prior to the July 26 unfair labor practice filing was meted out within two months of the incident.

Although the contract doesn’t have a time frame for how long after an incident an employee can be disciplined, it does stipulate how long an action can be used for progressive discipline. Both actions on 2012 incidents were reprimands, meaning Moore could use them for 18 months for progressive discipline. However, about 12 months of that time already had expired before the discipline was even issued.

According to SERB’s unfair labor practices booklet, “whenever disciplinary action follows closely after the exercise of protected rights, the unfavorable action is suspect and may justify investigation” to determine if the action is retaliatory.

Pam Krivda, a Columbus attorney who has more than 20 years experience as a management lawyer, said the close proximity of the discipline to the unfair labor practices filing could cause the union to look at it more closely. However, she said there could be a good explanation for the delay.

“If I were the city’s counsel, I would be a little concerned about it,” Krivda said.

None of the employees who received warnings or reprimands in August are specifically listed in the unfair labor complaint.

Before issuing the discipline from the 2012 incidents, Everson said Moore went to him with the paperwork.

“I don’t really question the timing on those so much,” Everson said, adding some things take more time to investigate. “All these write-ups originate from the officers’ sergeants.”

One of the 2012 disciplines related to officer performance during a period of time — August 2012 through December 2012; the other related to an officer missing a court appearance and not providing discovery on a case. In a Nov. 30 discipline of an officer for missing a court appearance, a warning was issued within two months of the Sept. 10, 2012, incident.

Resolution

Krivda, who represents public and private employers on labor issues, said unfair labor practice filings aren’t always as they appear.

“I sometimes see ULP charges that are filed to slow down another process or are filed to make a point about something else,” she said.

In the public sector, Krivda most often sees union claims relating to retaliation and refusal to bargain collectively. She does see some claims of interference with rights, which is part of the Chillicothe claim, that seem to be more of a “catch all.”

“I know they say they were threatened or coerced and he was talking about layoffs, but the FOP above all knows the police chief can’t carry out these threats,” Krivda said.

Messages left with the FOP’s executive director concerning the complaint have not been returned.

Regardless of the claims and what motivates them, most times Krivda said they are talked out and settled without going before SERB to determine a ruling. However, she said not to expect disciplinary action against Moore as part of that settlement.

“I would be a little surprised at any employer that would allow that (to resolve an unfair labor practice complaint) unless (it) is was something unrefutable and not subjective ... In a sense (agreeing to disciplining him) would kind of be letting the union run the city,” she said.

The city met with the union and mediator concerning the unfair labor practices filing on Monday, but Everson said they will be meeting at least one more time to try to come to a settlement. He thinks the issue can be talked out and not have to go to the hearing stage before SERB.

A second date for negotiation has yet to be set, Everson said.

As for the grievance, the mayor expects it will be resolved after Thursday’s meeting with the arbitrator. He declined to talk about the grievance and what might have delayed the process of going to arbitration. An initial date had been set for May 23 — the same day Moore allegedly went into a shift meeting and made comments about the grievance — but it was continued.

“Anything that’s going to arbitration, it’s like preparing for trial, and I shouldn’t be commenting on this,” Everson said.

Everson has asked council to appropriate $20,000 to retain Clemans, Nelson & Associates as consultants to work on the outstanding issues with the police union, upcoming contract negotiations with the police and an unrelated grievance pending elsewhere in the city.

The city typically has hired local attorneys to consult in negotiations. Everson said the decision to retain Clemans, Nelson & Associates came from a recommendation by Chillicothe Law Director Sherri Rutherford. If council approves the appropriation and the firm’s fees end up being more than the retainer, Everson said he would need to go back to council to ask for additional funds.

The city’s current contract with the police union runs through December 2014.